Via v. Beckett

617 S.E.2d 895, 217 W. Va. 348, 2005 W. Va. LEXIS 107
CourtWest Virginia Supreme Court
DecidedJuly 7, 2005
DocketNo. 32055
StatusPublished

This text of 617 S.E.2d 895 (Via v. Beckett) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Via v. Beckett, 617 S.E.2d 895, 217 W. Va. 348, 2005 W. Va. LEXIS 107 (W. Va. 2005).

Opinions

PER CURIAM:

This case is before the Court on appeal from the February 26, 2004, Final Order of the Circuit Court of Raleigh County dismissing the case. The entry of the Dismissal Order effectively resolved any remaining issues in the case not previously considered by the circuit court in its September 30, 2002, Order, which granted partial summary judgment in favor of Appellees on the issue of a particular call in a deed and its significance in the determination of a disputed property line. The issues considered in the September 30, 2002, Order are the focus of this appeal.

This Court has before it the petition for appeal, the response, the briefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein,1 this court finds that existing case law supports the position of the Appellees over that of the Appellant. Accordingly, the Court affirms the February 26, 2004, Order of the circuit court in favor of Appellees.

I.

FACTS

A. The Beckett Parcel

On December 7, 1972, Appellees Ralph Beckett and Joan Beckett obtained a parcel of land fronting on what is now East Main Street (but formerly Neville/East Neville Street) in Beckley, West Virginia (hereinafter, the “Beckett parcel”). The Becketts obtained the property from Robert W. Maples and Evalene Maples. The property had previously been deeded to Robert W. Maples and Lora Maples Mellon by Richai'd Lewis and Elizabeth Lewis on August 9,1944. The Lewises had obtained the property from Stansbury, Callaway & Scott, Inc. (hereinafter, “Stansbury”), on May 13,1924.

The 1944 Lewis-to-Maples deed and the 1972 Maples-to-Beckett deed contain this description of the parcel:

Beginning at'a stake on the northeast edge of Neville Street, a fence post and corner to Daniel Boone; thence with said Street N 65 10 E 47)io feet to a stake, corner to Lot No. 2; thence with the line of the same a straight line parallel to the line of the lot formerly owned by Tobin Stover, N 10 30 W 150 feet to a stake on an alley to a right-of-way, conveyed by Stansbury, Cal-laway & Scott, Inc. [sic] a corporation, to Claude Jarrett; thence a straight line parallel to East Neville Street and 150 feet distant thereto and with said right-of-way about 49jé feet to a stake in the line of the fence of Daniel Boone, and thence with his line about 150 feet to the place of beginning.2

[351]*351Upon the Beckett parcel are situated a house, an asphalt parking surface, garage apartments, and an outbuilding.

B. The Via Parcels

On May 10, 1996,3 Appellant William R. Via obtained two parcels of land from James Ansel Lilly. One of the parcels relevant to this matter was a fifteen-foot alley (hereinafter, the “Lilly-Via lot”). Situated upon the Lilly parcels was a one-story block building, which housed a gun and pawn shop. Upon discovering that the gun and pawn shop encroached on an adjoining lot, Via obtained the adjoining tract of land from Mary Lou Simpson on June 10, 1999.4 It is the former Simpson property (hereinafter, the “Simpson-Via lot”) that is at issue in this ease.

The Simpson-Via lot is apparently descended from the same original grantor as the Beckett parcel; that is, the Simpson-Via lot can be traced bade to Stansbury. Stans-bury obtained the lot from R.M. French, who obtained the lot in a trust deed from Perry A. Cook. The lot was described as follows:

Beginning at a stake at the intersection of East Neville Street, with East Park Avenue thence with East Park Avenue N 10 30 W 150 feet to a stake; thence leaving said Avenue S 65 10 W 49 — jé feet to a stake, a corner to Lot No. 1; thence with the line of Lot No. 1 S 10 30 E 150 feet to a stake at the edge of East Neville Street, and thence with East Neville Street N 65 10 E 49}é feet to the place of beginning, containing 7400 sq. ft.

That parcel was eventually conveyed to D.V. Lilly by Stansbury. Because none of the subsequent deeds relating to the lot were made part of the record (or, at least, are not part of the record presented to this Court), the Court cannot be clear as to how the land was conveyed to Simpson, who ultimately conveyed the parcel to Via.

The dispute herein focuses on the location of the common property line representing the western boundary of the Simpson-Via lot and the eastern boundary of the Beckett parcel. 'Though the deed conveying that property to Via is not part of the record, both parties agree that the Simpson-Via lot was described in that deed in the same manner as the lot was described in the Cook-to-Freneh trust deed noted above.

C. The Boundary Dispute & Procedural History

After obtaining the Lilly-Via lot, and discovering that the gun and pawn shop situated on the lot encroached on the Simpson lot and possibly on the Beckett parcel, Via commissioned Harold R. Snodgrass, a civil engineer, to survey the Lilly-Via lot in 1999.5 At that time, Snodgrass determined that the gun and pawn shop did indeed encroach on both the Simpson lot and the Beckett parcel. As referenced above, Via then purchased the Simpson lot (thereafter, the “Simpson-Via lot”).

In June of 2000, Via commissioned James E. Wentz, a surveyor by experience, to survey both the Lilly-Via and Simpson-Via lots. Unlike Snodgrass, Wentz found no encroachment of the gun and pawn shop on the Beckett parcel, but determined instead that a building on the Beckett parcel containing garage apartments encroached on a portion of the Simpson-Via lot by a little more than one foot.

[352]*352The discrepancy in the surveys of Wentz and Snodgrass followed from their different interpretations of the property descriptions contained in the relevant deeds. Snodgrass focused on the language of both deeds describing a common line between the Beckett parcel and the Simpson-Via lot. That call described a line “N Í0° 30' W 150 feet,” and the call in each deed referred to the neighboring lot.6 Snodgrass determined that this line, which was common to both sets of deeds, was a monument and based the rest of his survey on that monument.

Wentz, on the other hand, focused on certain other language found in the Beckett deed only. He focused on language that called for a line:

“Beginning at a stake on the northeast edge of Neville Street, a fence post and corner to Daniel Boone [the lot on the western edge of the Beckett parcel]; thence with said Street N 65 10 E 47 jio feet to a stake, corner to Lot No. 2; thence with the line of the same a straight line parallel to the line of the lot formerly owned by Tobin Stover [also known as the Daniel Boone lot], N 10 30 W 150 feet to a stake on an alley to a right-of-way, conveyed by Stansbury, Callaway & Scott, Inc. [sic] a corporation, to Claude Jarrett....” (Emphasis added.)

Wentz determined that the line N 10° 30' W 150 feet was not parallel to the line of the lot formerly owned by Tobin Stover; therefore, he assumed that the call to a line N 10° 30' W 150 feet must have been a typographical or clerical error.

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Bluebook (online)
617 S.E.2d 895, 217 W. Va. 348, 2005 W. Va. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/via-v-beckett-wva-2005.